92 Decision Citation: BVA 92-20264
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-46 527 ) DATE
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THE ISSUES
1. Whether new and material evidence has been submitted to
reopen the veteran's claim of entitlement to service
connection for a chronic acquired psychiatric disorder, to
include post-traumatic stress disorder.
2. Entitlement to service connection for residuals of a
back injury.
3. Entitlement to service connection for residuals of
bilateral knee injuries.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
William R. Harryman, Jr., Associate Counsel
INTRODUCTION
This case came before the Board of Veterans' Appeals (the
Board) on appeal from rating decisions of the Detroit,
Michigan, Regional Office (hereinafter RO). The veteran had
honorable active service from February 1969 to November
1971. A rating decision in October 1984 denied the veteran
entitlement to service connection for an acquired nervous
condition, to include post-traumatic stress disorder, and
for alcoholism. Although the veteran was notified of that
determination, he filed no appeal. Rating decisions in
October 1989 denied the veteran entitlement to service
connection for residuals of a back injury and for residuals
of bilateral knee injuries, as well as for service
connection for a nervous condition. A notice of
disagreement was received from the veteran in December 1989,
and the RO issued a statement of the case that same month.
The veteran's substantive appeal was received in August
1990. By a decision in April 1991, the Board previously
remanded the case for further development on the issue
relating to a psychiatric disorder. A rating decision in
July 1991 again found that no new and material evidence had
been submitted to reopen the veteran's claim of entitlement
to a chronic acquired psychiatric disorder, to include
post-traumatic stress disorder. A supplemental statement of
the case was issued the following month.
The veteran has been represented throughout his appeal by
Paralyzed Veterans of America, Inc., which has submitted
additional written argument on his behalf. The case is now
again before the Board for appellate consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that he witnessed numerous stressful
events during his service in Vietnam, including the death of
two of his close friends, that his current psychiatric
symptomatology is consistent with a diagnosis of
post-traumatic stress disorder, and that, therefore, service
connection for post-traumatic stress disorder is warranted.
He also contends that he now has residuals of inservice
injuries to his back and knees for which service connection
should be granted.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C. § 7104
(1992), following review and consideration of all the
evidence and material of record in the veteran's claims
file, and for the following reasons and bases, it is the
decision of the Board that no new and material evidence has
been submitted to reopen the veteran's claim of entitlement
to service connection for a chronic acquired psychiatric
disorder, to include post-traumatic stress disorder, and
that service connection for residuals of a back injury and
for residuals of bilateral knee injuries is not established.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The issue regarding a chronic acquired psychiatric
disorder is not so complex or controversial as to warrant an
opinion by an independent medical expert.
3. Service connection for a chronic acquired psychiatric
disorder, to include post-traumatic stress disorder, was
denied by an unappealed rating decision in October 1984.
4. Additional evidence received since October 1984 does not
show that the veteran now has a chronic acquired psychiatric
disorder that had its origins in service, that he now has a
psychosis which had its origins in service or within one
year following separation from service, or that a diagnosis
of post-traumatic stress disorder is now reasonably
substantiated.
5. The record does not show that the veteran sustained an
inservice back injury.
6. The evidence does not show that the veteran sustained an
injury to his left knee during service.
7. The veteran's inservice right knee injury was acute and
transitory and resolved without residual disability.
CONCLUSIONS OF LAW
1. An opinion by an independent medical expert regarding
the issue pertaining to a chronic acquired psychiatric
disorder is not warranted. 38 C.F.R. § 20.901(d) (1992).
2. The October 1984 rating decision which denied
entitlement to service connection for a chronic acquired
psychiatric disorder, to include post-traumatic stress
disorder, is final, based on the evidence then of record.
38 U.S.C. § 7105 (1992); 38 C.F.R. § 3.104 (1992).
3. Evidence received since October 1984 regarding the issue
of entitlement to service connection for a chronic, acquired
psychiatric disorder, including post-traumatic stress
disorder, is not new and material and the veteran's claim is
not reopened. 38 U.S.C. §§ 5107, 5108 (1992); 38 C.F.R.
§ 3.156 (1992).
4. Claimed residuals of a back injury were not incurred in
or aggravated by wartime service. 38 U.S.C. §§ 1110, 5107
(1992).
5. Claimed residuals of bilateral knee injuries were not
incurred in or aggravated by wartime service. 38 U.S.C.
§§ 1110, 5107; 38 C.F.R. § 3.303 (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board notes that we have found that the
veteran's claims are "well-grounded" within the meaning of
38 U.S.C. § 5107(a). That is, we find that he has presented
claims which are plausible. We are also satisfied that all
relevant facts have been properly developed. No further
assistance to the veteran is required to comply with the
duty to assist him mandated by 38 U.S.C. § 5107(a).
I. Chronic Acquired Psychiatric Disorder, to
Include Post-Traumatic Stress Disorder
The decision of a duly constituted rating agency on which an
action was predicated will be final and binding as to the
conclusions based on evidence on file at that time, and will
not be reopened unless new and material evidence is
presented or secured with respect to that claim, or unless a
notice of disagreement is filed within one year of that
decision. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.104.
As indicated above, service connection for "an acquired
nervous condition" and for "traumatic stress disorder" was
denied by a rating decision in October 1984. Although the
veteran was notified of that determination, he filed no
appeal.
Evidence which was of record at the time of that rating
decision consisted mainly of the veteran's service medical
records and of the report of a Department of Veterans
Affairs (VA) psychiatric examination conducted in August
1984.
The service medical records are completely negative for any
complaints or clinical findings consistent with any
psychiatric disorder. The veteran's DD Form 214 shows that
he served as Marine, with a military occupational specialty
as a heavy equipment operator, and that he had no combat
awards or decorations.
In 1984, a VA psychiatrist noted the veteran's complaints of
depression and of feeling "like a time bomb." The veteran
reported that he had a longstanding history of drug and
alcohol abuse, the latter of which had begun prior to
service. The veteran recalled an incident in 1971 in which
he witnessed a friend being blown up by a landmine in
Vietnam. He indicated that he had frequent memories of that
friend, as well as guilt feelings about surviving him. He
also reported bad dreams which had increased in frequency
during the previous several months since he had stopped
drinking. The veteran also stated that he had a poor work
history since his separation from service, having held three
jobs. He indicated that he did not at that time have any
contact with his family members, although he was currently
living with a girl friend. He also reported some temper
tantrums. On mental status examination, the veteran stated
that he had feelings of depression and of regret about his
past, describing himself as "not a good person." He
indicated that most of his prior involvement with the law
had occurred when he was under the influence of alcohol. He
also reported a suicide attempt in January 1983, but that he
no longer wished to kill himself. He also described some
problems in the form of an inability to sleep due to bad
dreams, consisting mainly of the scene in which his friend
was killed by a landmine. He also stated that he used
alcohol in order to numb his feelings about many things,
among them some of his Vietnam experiences. He stated that
he wanted to work, but that he had problems finding a job.
He reported that a VA vocational rehabilitation counselor
had promised assistance in that regard. The diagnoses
assigned included traumatic stress disorder, borderline
personality disorder and a history of alcohol and drug
abuse.
Evidence submitted since October 1984 consists largely of VA
outpatient records dated in May 1989, the summaries of VA
hospitalizations in February and May 1989, the results of VA
psychological testing conducted in May 1989, and the report
of a period of VA psychiatric observation and evaluation in
May and June 1991.
The veteran was hospitalized at a VA facility in January
1989 following an attack on another person while he was
under the influence of alcohol. On examination at that
time, the veteran's mood was depressed and he appeared
hostile toward oriental people. He exhibited perceptual
aberrations in the form of flashbacks upon seeing oriental
people, with the development of reenactment feelings with
anger and bitterness. He indicated that he would hear
mortar explosions at such times, and that he was unable to
sleep because of night terrors. The remainder of the mental
status examination was reportedly within normal limits. He
was hospitalized for the purpose of detoxification, but
during the hospitalization was started on medications to
control his depression and his angry outbursts. On
discharge, his condition had reportedly improved somewhat
from that at the time of his hospital admission. He was
hospitalized for approximately one month.
The veteran was again hospitalized at a VA facility in May
1989 in order to begin counseling in a post-traumatic stress
disorder program. Mental status examination at the time of
hospital admission was significantly negative with the
exception of reported problems with flashbacks and night
terrors, and a rather blunted affect. The veteran also
reported ideas of suicide, homicide and depression. He
began treatment in the stress recovery program, and
reportedly showed satisfactory participation in therapy
during the hospitalization. The examiner indicated that, on
discharge, he was markedly improved. At the conclusion of
both the noted VA hospitalizations, the same VA examiner
assigned Axis I diagnoses of post-traumatic stress disorder
and continuous alcohol dependence. No Axis II or III
diagnoses were listed.
The VA outpatient records document the veteran's
participation in May 1989 in an outpatient stress management
program and vocational counseling.
VA psychological testing was accomplished on an outpatient
basis in May 1989. The examiner indicated that the validity
of the testing was questionable, and that such question
could be attributed to exaggeration. The examiner indicated
that the veteran showed passive/aggressive disposition, as
well as avoidant and asocial characteristics. He exhibited
some symptoms of borderline personality disorder. There
were other indications of a high level of anxiety, recurrent
periods of depression and recourse to substance abuse. The
examiner stated that many of those problems were
manifestations of symptoms of post-traumatic stress
disorder. Axis I diagnoses of delayed post-traumatic stress
disorder and substance abuse in remission were recorded.
In May and June 1991, the veteran underwent a period of
observation and evaluation at a VA facility. At the time of
admission the veteran admitted to drinking a pint of whiskey
that day and daily for many years, but stated that he had
not been drinking since January 1991. On examination at the
time of admission, the veteran was alert and oriented in all
spheres. He was coherent and relevant in his conversation,
and there was no evidence of psychomotor agitation or
retardation. His mood was euthymic and his affect was
appropriate to the content of thought. The veteran's
thought processes were goal-directed and relevant. There
were no loose associations or delusional thinking noted.
His memory was good for recent and remote events. The
examiners reported that the veteran had fair insight and
judgment, and that he denied any suicidal or homicidal
ideations. There was no evidence of psychosis. He was
subsequently assessed over a period of approximately two
weeks.
During the period of observation and evaluation, the veteran
stated that he spent approximately two months in Vietnam.
He reported that he received no physical injuries, but
admitted to psychological injuries characterized by paranoid
feelings, fear of people, depression and survival guilt. He
recalled personally being involved in several firefights in
Vietnam. He reported that he lost friends while in Vietnam
and actually saw two die. He stated that he had a fear
about getting close to people, was very bitter and very
callous since the incidents. He reported that he began
using marihuana and heroin during service. He also reported
attempting suicide by overdose of alcohol and barbiturates
on more than one occasion in recent years. He stated that
he continued to experience fear of crowds and had nightmares
of being chased by Vietnamese or of friends dying. He
reported that he had begun using alcohol at age 15. At one
point during the hospitalization, the veteran reported being
very much upset about an apparent hallucination the previous
day in which he saw a "dead body" covered with a sheet on a
stretcher. He stated that he was feeling anxious and
depressed about it.
During that hospitalization, the veteran was evaluated by a
board of two psychiatrists and a multidisciplinary team. He
received comprehensive psychiatric assessment, physical
evaluation and psychological testing. As in 1989, the
results of the psychological testing reportedly indicated
that the veteran greatly exaggerated his symptomatology to
the point that the test was invalid. The examiners' general
findings were that there was an extreme amount of distress,
agitation, depression, irritability and suspicion in times
of violence. Throughout the hospitalization, the veteran
was isolative, but generally cooperative. During the
interviews, however, he appeared very guarded and
defensive. He was reportedly observed without any
psychotropic medications being given. Although he reported
some complaints of flashbacks, none were reported or
observed. The veteran did state that he had some nightmares
at the time of the occurrence of his reported flashbacks.
The examiners further indicated that the veteran was not
fully cooperative during the period of evaluation, but that
the veteran was aware that he was obstructing his own
evaluation and made a conscious decision to proceed in that
manner. Axis I diagnoses included dysthymia and substance
abuse in remission. A diagnosis of mixed personality
disorder with borderline and passive/aggressive features was
assigned on Axis II. No diagnosis was assigned for
Axis III. The examiners did not indicate that
post-traumatic stress disorder was even considered as a
possible diagnosis.
Although the veteran's representative has requested an
opinion by an independent medical expert, we do not believe
that such an opinion is justified. The issues raised in
this case are not so complex or controversial as to warrant
such an opinion. While a diagnosis of post-traumatic stress
disorder may have been assigned by one VA examiner on two
occasions, it is clear from the record that the diagnosis
was based, to a large degree, on the veteran's history as
reported by him. Moreover, at least the first of those
hospitalizations was initiated for alcohol detoxification.
Significantly, following extensive interviewing and
evaluation during a period of psychiatric observation and
evaluation, a board of two psychiatrists did not find that
the veteran had PTSD, but, rather, concluded that he had
dysthymia.
After review of the record, we conclude that the additional
evidence is "new." The evidence obviously pertains directly
to the issue of service connection for post-traumatic stress
disorder.
However, the additional evidence is not "material."
Assuming, without deciding, that the additional evidence is
relevant and probative, there is no reasonable possibility
that the additional evidence, when viewed in the context of
all the evidence, both old and new, would change the
outcome. See Colvin v. Derwinski, 1 Vet.App. 171 (1991);
Smith v. Derwinski, 1 Vet.App. 178 (1991). The additional
evidence contains no objective proof that the veteran now
has a chronic acquired psychiatric disorder which had its
origins during service or that he now has post-traumatic
stress disorder.
The veteran's claim regarding this issue, then, is not
reopened.
II. Residuals of a Back Injury
Service connection connotes many factors, but basically it
means that the facts, shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces, or if
preexisting such service, was aggravated therein. 38 U.S.C.
§ 1110; 38 C.F.R. § 3.303 (1992).
The service medical records are completely negative for any
complaints or clinical findings consistent with a back
injury or with any residuals of a back injury.
The report of a VA examination conducted in August 1984
notes that the veteran had full range of motion of his
lumbosacral spine, was able to accomplish a complete squat,
that all his extremities had full range of motion, and that
his reflexes were within normal limits. No abnormal
clinical findings regarding his back were reported.
None of the subsequent VA records refers to any back
complaints or notes positive clinical findings regarding the
veteran's back.
The veteran's representative has contended that the 1984 VA
examination was not conducted for purposes of evaluating the
veteran's back and that clinical findings regarding his back
were incomplete. He has asked that another, more
comprehensive examination of the veteran's back be afforded
him. We do not believe that any additional examination is
warranted, since there is no medical evidence in the record
whatsoever to indicate that the veteran has ever had
residuals of a back injury, either during service or during
the more than 20 years since his separation from service.
In the absence of such evidence, the detection of clinical
findings regarding the veteran's back at this late date
would be insufficient to establish service connection.
Therefore, no additional examination is required.
Without evidence tending to show that the veteran sustained
an inservice back injury which resulted in chronic
residuals, then, service connection for residuals of such a
back injury is not established. 38 U.S.C. § 1110.
III. Residuals of Bilateral Knee Injuries
The service medical records show that, in October 1971,
shortly before his separation from service, the veteran was
seen complaining of pain in his right knee of 12 hours'
duration. On examination, there was diffuse symmetrical
swelling of the knee joint with patellar crepitus. There
was tenderness noted over the anterolateral and medial joint
space. Range of motion was essentially full. McMurray's
and drawer signs were negative. X-ray of the knee
reportedly revealed no abnormalities. The diagnosis
assigned was of a knee sprain. At the time of the veteran's
separation examination approximately three weeks later, no
abnormalities were reported regarding the right knee. The
service medical records are completely negative for
complaints or clinical findings consistent with any left
knee injury or residuals of a left knee injury.
As indicated above, the 1984 VA examiner found full range of
motion in all the veteran's extremities. In addition, he
was able to accomplish a full squat. No abnormalities
regarding either of the veteran's knees were reported.
Subsequent medical records refer to no complaints or
abnormal clinical findings regarding either of the veteran's
knees.
The veteran's representative has also requested that he be
afforded an examination so that his knees might be
specifically and more fully evaluated. As indicated above,
with normal findings noted on the 1984 examination and
without any clinical evidence documenting complaints or
positive clinical findings regarding either of the veteran's
knees for more than 20 years following his separation from
service, we believe that an additional examination at this
time would add little, if any, probative evidence regarding
the issue of service connection for residuals of knee
injuries.
Although the veteran did apparently sustain a sprain of his
right knee during service, in the absence of clinical
evidence showing the presence of chronic residuals of that
injury for more than 20 years following service, we cannot
conclude other than that the inservice injury was acute and
transitory and resolved without residual disability.
Therefore, in the absence of clinical evidence tending to
show that the veteran now has, or has ever had, chronic
residuals of injuries to either knee during service, service
connection for such residuals is not established. 38 U.S.C.
§ 1110; 38 C.F.R. § 3.303.
Although we have considered the doctrine of affording the
veteran the benefit of any existing doubt, the evidence on
each of the above issues is not so evenly balanced as to
permit application of the provisions of 38 U.S.C.
§ 5107(b).
ORDER
The veteran's claim regarding service connection for a
chronic acquired psychiatric disorder, to include
post-traumatic stress disorder, is not reopened. Service
connection for residuals of a back injury and for residuals
of bilateral knee injuries is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
NANCY R. ROBIN B. KANNEE
*
(MEMBER TEMPORARILY ABSENT)
*38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.